Constitutional issues in Berne as inappropriate images discovered

Published 11:04 pm, Friday, January 25, 2013

The Fourth Amendment question here is not about the seizure, but the search that came afterward.

A Berne parent grew outraged after a school principal confiscated his son's phone earlier this week after being caught texting in class. It's not the confiscation of the 14-year-old's iPhone 5 that caused the ire, but rather the searching of it, which revealed inappropriate photos of his 14-year-old ex-girlfriend. The principal, Brian Corey, contacted the Albany County Sheriff's Department.

Law enforcement and legal experts agree schools have a greater right to search students and their property than do police among the general public, where the Fourth Amendment protects against unreasonable searches and seizures. The question is the line where it becomes too invasive given the circumstances.

"It wasn't something that they just scrolled through as a screensaver or something he was looking at," the boy's father told News 10. "They proceeded to take the phone and access his personal accounts and read them to find the photos and that's where I think they crossed a major line."

The father, whose name is being withheld by the Times Union so as not to reveal the identity of the youth, could not be reached Friday.

Berne-Knox-Westerlo Superintendent Paul Dorward said he could not discuss the specifics of the incident, including if there's been any meetings or disciplinary action. "We are continuing our own investigation into the manner, and cooperating with the police investigation," he said.

Technically, since the ex-girlfriend sent the images, both youths could face child pornography charges for the photos. The sheriff's department is in the process of obtaining a search warrant for the phone, but at this point it doesn't appear any charges, which would go to Family Court, will be filed.

"We've spoken to the district attorney's office," Sheriff Craig Apple said. "Right now, they don't want to go forward with the information they have.

"I hate to say it, but this is what a lot of kids do. The last thing we want to do is destroy young kids' lives," Apple said.

Paul Dwyer, the lawyer for the boy's family, said, "We are working with the other side on it and we hope to get it resolved." He declined comment on the constitutionality of the search.

Apple said he can see the father's viewpoint. "As a parent, I would be extremely annoyed and agitated if someone went through my son's phone," he said. "I don't know what the reasoning is." That said, he believes students can't have an expectation of privacy on school grounds.

"We can go in and search a locker with a principal's OK," Apple said. "When those kids are in school, the school district has almost the same as parental control over them. The expectation of privacy is somewhat removed."

Speaking generally, Dorward said there is a different standard for searches applied in schools than in the general public.

"We always respect our students' constitutional rights. They don't end when they come into the school," the superintendent said. "But the scope of those rights are not the same as they are out in the community. The school administrator has a greater flexibility to confiscate and search student property.

"The actual standard is 'individualized reasonable suspicion of a violation of school rules or laws,' not 'probable cause that a crime has been committed,'" Dorward added.

But Albany area attorney Kevin Luibrand, who is not involved in the case but has litigated many Fourth Amendment search-and-seizure as well as school district issues, said the school was within its rights only up to seizing the phone.

"They can confiscate the phone, but they can't search the phone," he said. "They can't confiscate the phone and go through the kid's history of emails and text messages."

Luibrand said the school has the right to inspect any of its property and to conduct random and general searches — say, asking a student to empty his pockets or produce identification. But searching a phone's contents goes too far. (He said it would be different if the offending photo had been immediately visible.)

"It's more invasive. It's as simple as that," Luibrand said. "It's more invasive than a search of a backpack. It's taking a search to another level."